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JUSTICE FOR MENTAL PATIENTS (JuMP) |
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This
page has numerous links to other parts of Mental Magazine uk and other
websites. To move back and forth from any link, click on the
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LIST OF ARTICLES following this Introduction
The 1983 Mental Health Act has been scapegoated from the start of its existence. Every time there’s a national scandal about people with mental health problems, shortcomings in current legislation are blamed and radical changes called for as the only possible solution to the massive failures in care.
After several years of consultation and debate, followed by a White Paper followed by more consultation and debate, the government issued its proposals
in a draft mental health bill on 25 June 2002 and consultation is invited from everyone - a great opportunity for us all - until 16 September. For details see the Home Page of this website. These proposals actually amount to very little indeed and have been almost universally condemned as unworkable, inappropriate and dangerous. In my opinion, the government needs to look at how the current laws and policies are being applied.An important event – open to all - took place on Thursday, 5 July 2001, under the auspices of the UKs most prestigious mental hospital – the Maudsley. This was the 10th Maudsley Debate and the motion was: “This house welcomes the implementation of the Government White Paper on mental health.”
The motion was defeated by 112 votes to 2.
See details of debate on Home PageThe truth is that the current legislation includes all the elements needed to protect a patient’s rights both in and out of hospital. It also provides stringent safeguards against poor performance and exploitation of patients by authorities or individuals.
The 1983 Mental Health Act can be found on a number of websites
eg www.markwalton.net, and can be bought for £14.50 through ordinary bookshops, from HMSO bookshops or ordered online from HMSO
(email: book.orders@theso.co.uk)For the last 15 years (at least) the threat of legislation for Community Treatment Orders (CTOs) has been hanging over mental patients. In fact, the threat of this legislation is having much more effect than if the legislation were ever introduced (which I think is highly unlikely); because it wouldn’t make any difference!
The problem is not the current legislation but its implementation.
We are promised/threatened the “biggest shake up in mental health law for 20 (or is it 40?) years”. But as everything is in there already, what can change? The 1983 Act was not much different from the 1959 Act that it replaced. The difference is in the statutory monitoring body under the Act. It is widely seen that the performance of this body under the current Act has been a manifest and monumental failure. That is, the Mental Health Act Commission (section 121 of the 83MHA), which is a Special Health Authority with the duty to safeguard the interests of the detained patient. The MHAC is subject to same complaints procedures as any other Health Authority in the NHS and complaints about it can be made to the Health Authority Ombudsman. The Commission itself does not draw that information to our attention. Check out the website.
For the past 12 years I have been campaigning for the use of Guardianship under the 1983 Act and call it "The Man in the White Suit". (The item on the Home Page explains why.) Two articles are included here that deal with Section 7 (civil) Guardianship. One on private Guardianship the other on Guardianships recommended by Mental Health Review Tribunals.
Three of the most important pieces of information in the 1983 Mental Health Act are:
Section 131(1) - right to informal treatment in hospital;
Section 145(1) - the definition of “medical treatment” that does NOT specify medication just treatment under medical supervision;
Section 62(1) - urgent treatment which is not irreversible or hazardous.From 1983 Mental Health Act:
Section 131.- (1) Nothing in this Act shall be construed as preventing a patient who required treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and, without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained.
(See also message on discussion board about Section 131.)Section 145.- (1) “medical treatment” includes nursing, and also includes care, habilitation and rehabilitation under medical supervision;
Section 62.- (1) Section 57 and 58 above shall not apply to any treatment-
(a) which is immediately necessary to save the patient’s life;
or
(b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or
(c) which (not being reversible) is immediately necessary to alleviate serious suffering by the patient; or
(d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.To give some background to the way UK mental health care has been provided and the legislation implemented, and to put it in context with what is happening now - I’ve reproduced articles from the August 1990 issue of NSF News – the magazine for the National Schizophrenia Fellowship, together with the letter written by John Pringle (NSF founder) published in The Times in 1970 and an article in The Sunday Times last year about Carole Stone’s experience of living with her mentally ill brother. I’ve included my articles on Guardianship in both the NSF News and the Mental Health Review Tribunal News Sheet, and three Department of Health circulars:
Mental Illness Specific Grant (1991)
Care Programme Approach (1991)
National Service Framework (1999).The media coverage I have seen of the death of Sarah Lawson, did not include any reference to the legal duties currently imposed on the authorities to provide care. Sarah and her family had been asking for help for 10 years. Her death has of course only been highlighted because of the unusual circumstances (her father killed her in desperation, being unable to alleviate her suffering.) Had she been successful in any of her own attempts to kill herself it would have received no attention.
The Care Programme Approach and the National Service Framework should ensure that Sarah Lawson and all patients receive appropriate care and that their families and friends receive appropriate help in supporting the patients.
In 2000 PROFESSOR LOUIS APPLEBY was appointed as National Director for Mental Health (MENTAL HEALTH CZAR) and has been charged with overseeing the implementation of the National Service Framework. What he says about this is on the taperecordings of the *National Schizophrenia Fellowship Members’ Day and AGM last December when Professor Appleby was the keynote speaker. The cost for the three tapes is around £10. Contact the NSF via the website or at the Kingston office at 28 Castle Street, Kingston upon Thames, Surrey KT1 1SS. Tel: 020 8547 3937. Fax: 020 8547 3862.*The National Schizophrenia Fellowship was renamed "Rethink" in 2002.
Under Standard 6 of the National Service Framework, "carers" have defined rights that authorities are required to honour. Funded by the Department of Health, The National Schizophrenia Fellowship has recently produced a very informative leaflet on “carers’” rights. The leaflet is available from the NSF (tel: 0208 547 9221) and it can also be viewed and downloaded from the NSF carers' website.
The reality of “Community Care” is that it can be every bit as institutionalised in the bad sense, as hospital care. A poem by Alex Davidson, published in the first issue of “Perspectives” (the magazine of the Voices Forum within the NSF) describes it horribly well:
TIME FOR MY JAB
Time
for my jab
CPN looks at me
Pull your pants down
The dirty great big needle
Ouch! That hurts!
Done (with a rub)
Pull your pants up
Have a sleep
Goodbye
And Janet Cresswell is not still detained in secure hospitals because of a faulty mental health act – but because the powers in the Act have not been exercised. ( See Home Page )
While Janet has been physically deprived of her freedom for 27 years, she has remained a free spirit. Others have been deprived of mental freedom and effectively imprisoned. We have democratically created an authoritarian society with an increasingly controlled and controlling community.
Another line from The Eagles' song Hotel California puts it like this:
"You can check out any time you like but you can never leave."Rosemary Moore
July 2001
revised June 2002, July 2003
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INTRODUCTION
by Rosemary Moore
From NSF
News, 1990 (The magazine of the
National Schizophrenia Fellowship)
6
Articles
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From
the Mental Health Review Tribunal Members’ News Sheet, 1993 -
From
Department of Health 1990 and 1999
3
Circulars -
From The Times, 9 May 1970 -
From The Sunday Times Magazine, 2001 -
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Front page, NSF News, August 1990
A joint open letter to the Home Secretary, David Waddington, from the Directors of the NSF, MIND, the Howard League for Penal Reform, the Prison Reform Trust and the National Association for the Care and Resettlement of Offenders (NACRO) about the “presence in our prisons of large numbers of mentally vulnerable individuals” urged the Home Secretary to “take a number of steps to divert the mentally vulnerable from the criminal justice system”.
The Directors drew attention to the fact that there had been a 38% increase in those prisoners referred to psychiatrists between 1988 and 1989 “at a time when the prison population was actually falling”. They were also concerned about the “increasing number of prisoners who are committing suicide”.
The number of prison suicides had doubled during the 1980’s, and staff at Brixton prison “estimate that 85% of prisoners were mentally disturbed” who committed suicide in 1989. 30% of prisoners committing suicide “have undergone psychiatric assessment or treatment before coming into custody”.
The Directors emphasised the problems within remand prisons where studies had shown that 60% of psychiatrically disturbed prisoners had been homeless on reception, and in 40% of cases the prisoners were “incapable of caring for themselves independently in the community at the time of arrest”.
The five Directors called upon the Home Secretary to “implement immediately” several measures which included: 1. Specialist training for police, magistrates, and court clerks; 2. Establishment of a range of accommodation, including specialist bail hostels; 3. The monitoring of decisions and treatment of black inmates and women prisoners; 4. The integration of the Prison Medical Service into the National Health Service.
In a press release with the letter Jerry Westall for NSF gave the example of the psychiatric bail hostel “being pioneered in Birmingham” by NSF and others, supported by the Mental Health Foundation, as model to follow as “the estimated cost per resident would be appreciably less than keeping the same person in prison”. He also compared Home Office plans “to open 24 new prisons by the end of the century” with the plans of health authorities “to close 36 mental hospitals by 1995 with a loss of 12,500 places.”
“The NSF” he commented “does not wish to see people transferred from hospital care to the penal system because of the lack of appropriate care in the community, but it looks as if this is happening”.
On July 10th the Independent revealed that “Estimates put the number of inmates in Brixton jail who are so demonstrably mentally ill that they could be sectioned under the Mental Health Act, at 330 in 1988-89 compared with 220 in 1987-88”.
NSF News, August 1990
Front page article
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WILLIAM BINGLEY INTERVIEW
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(Mental
Health Act Commission website is at http://www.mhac.trent.nhs.uk)
NSF News, August 1990
WILLIAM BINGLEY became Chief Executive of the Mental Health Act Commission in February 1990, after being seconded from MIND (where he was Legal Director) to the Department of Health as secretary to the working party which produced the Mental Health Act Code of Practice.
Jerry: You have spoken clearly
about the rights of psychiatric patients, but how does the Commission view the
position of carers and their rights?
William: I think that the
Commission views the position of carers and relatives, especially relatives
who have a close involvement with the patient, as being very important indeed.
That concern and interest is a reflection of what the Mental Health Act
says. The Commission is
primarily charged with monitoring and keeping under review the operation of
the Act which gives powerful recognition to the rights of relatives.
When for instance a decision is being taken about whether someone should
be compulsorily admitted, by professionals – then not only does that
professional have to consider the rights of the patient but there are a number
of rights holders in that process whose rights have to be considered, and
obviously the most important in many ways is the nearest relative.
Jerry: You will know that NSF has
on its headed notepaper that we are “for the welfare of people with
schizophrenia and allied disorders, their families and carers”.
Do you think one organisation can represent both points of view?
William: I think it’s very
difficult to do so. Patients
and carers sometimes have very different views about what should happen to
them. But
in the end, in the context of the Mental Health Act, it’s a professional’s
job to take all the different views into account, balance them up and then
make a decision.
Jerry: I think both NSF and MIND
are trying to represent both points of view.
NSF with its support of Voices
and MIND now say they are interested in the rights of carers as well as users.
William: I think that’s true.
Jerry: Would you prefer to use the
word patient for people with a mental health problem, or do you prefer
‘users’ or ‘sufferers’ or ‘clients’?
William:
‘Patient’ I think implies somebody who is actually receiving formal
medical services. I know all the
problems that can be attached to the meaning of the word ‘patient’. I’m also a little unhappy about the word ‘users’ –
that sometimes seems to imply someone who is just receiving, without too much
contribution the other way. The
same sort of criticism can be made of the word ‘consumer’.
I personally prefer the phrase ‘people suffering from some mental
health problem’. It seems to me
that recognises the individual as a person, but also recognises that they are
perceived as having a mental health problem.
Jerry: Voices use the phrase “people who have experienced
schizophrenia” – this leaves the possibility of recovery.
William: I think that’s a very
good way of describing it.
Jerry: What is your ambition, your
strategy over what you would like to see the Commission achieving over a
reasonable time span?
William: I’ve got three
objectives over a five year span. Firstly,
the Minister has decided that the Mental Health Act Commission is to be
centralised in Nottingham. That
means closing the London and Liverpool offices.
My chief objective as head of the staff side of the Commission is to
ensure that happens with as minimum disruption to our customers – patients
and professionals, relatives, carers, etc. as possible.
Secondly, to ensure that from the point of view of administration of
the Commission activities that we take full advantage offered to us by
centralisation. I think it is
going to be very much easier to administer the many and quite complicated
activities of the Commission when we have all our staff in one office.
The first seven years of the Commission, in many ways, has seemed as if
there were three commissions – three regions – the Southern, North-East
and North-West. Not surprisingly,
because they had separate offices, they developed different ways of dealing
with things. I want to try and
achieve the best possible administrative support for our Commissioners and the
establishment of rational ways of carrying out the various functions of the
Commission. My third objective,
in the long term, and I think this was implicit in the creation of a Chief
Executive’s post, is to contribute to the making of better use of the mass
of material which this Commission picks up as it carries out its statutory
duties. We are the only statutory
organisation that visits every psychiatric hospital at least once a year.
We are the only organisation that meets with social service departments
at least once every two years to discuss how the Mental Health Act is
operating.
We
visit all private mental nursing homes, a growing sector in the delivery of
in-patient mental health care. We
also operate the second opinion procedures, so many of our doctors will be
going to see a lot of detained patients in relation to their treatment over
the year.
We have got to be able to handle that information. Centralisation is going to give us the opportunity of installing a decent data system. We need to be much better at converting our experience, at local level to a more generalised policy level so that we can give more advice than the Commission has done in the past to Ministers about how things are actually working out.
Jerry: You are involved with the
Code of Practice which you yourself had a part in producing.
The Minister has now said the Commission are going to assess the Code.
William:
What the Minister has said is that in general terms the Commission, will be
monitoring the implementation of the Code and will from time to time give him
advice on any possible changes that he might consider making.
I am sure the Minister will receive advice from other quarters but I
think it’s an important role for the Commission to receive comments from a
wide range of people. Our
commissioners have already been when they visit hospitals or go to social
services to commence the task of seeing how the Code is working and also to
pick up problems and suggestions about how it may be amended.
It was published on 19 June (1990) and is now available from HMSO shops
(£3.50 – see review in this issue).
See
Harold Jones' review of
the Code of Practice
in same NSF News issue.
NSF,
by way of their representative in the House of Lords, raised three particular
points about the Code of Practice. The
Minister has asked the Commission to comment to him by the end of the year,
and I hope we can do this in September/October, on these specific points
that were raised by Lord Mottistone in the debate.
Commissioners have already been asked to look at those issues and we
have established a national standing committee on the Code of Practice whose
primary purpose will be to put together our comments on it.
We want to receive comments on the Code.
Ministers are recognising that this Code is not a tablet of stone to be
changed every ten years but is guidance about practice and practice changes.
(The text of the debate in the House of Lords on the Code is available
from National Office. Some public libraries have Hansard in the reference section -
see 29 January 1990, cols 68-86.)
Jerry: Do you think amendments to
the Mental Health Act and new legislation are likely reasonably soon?
William:
I don’t think so. I find it quite difficult to foresee at the moment any likely
government time being found to make amendments to the MHA.
The only possible way, and I am now speculating, is that if some
disaster happens, one of the responses would be for the Government to make an
amendment to the MHA. Having said that, the Commission is very interested in
looking at the Act itself and we have a national standing committee, one of
whose jobs is looking at and formulating proposals to go to the Secretary of
State about possible changes to the Act.
Jerry: I think the major area that NSF members would be interested in is either beefing up guardianship or a community treatment order - a means of dealing with the fact that many more people are going to be discharged into the community and a few may be a danger to themselves or others.
See Rosemary Moore article on private Guardianship which appeared in the same NSF News issue. And her article on Mental Health Review Tribunals' power to recommend transfer of detained patients to Guardianship in MHRT Members News Sheet, 1993.
William: I know the Department are
thinking about it. The issue of
CTOs is a good illustration of what the Commission is about. We have 88 commissioners and we do not have a Commission view
on the desirability of CTOs. What
we have produced is a document which sets out all the pros and cons.
We are reconsidering the CTO issue and the issue of
Guardianship.
This document is available from Maid Marian House, Houndsgate, Nottingham, NG1 6BG.
Jerry: So that is an area where
there might be amendments?
William: There could be.
You can put forward ideas about changing legislation, but is there is
going to be sufficient parliamentary time?
At the moment I don’t see that there is enough of a consensus to
persuade the Government on this.
Jerry: If someone diagnosed as having a mental illness, who was
prescribed medication but refused to take the treatment, killed several people
- something most unlikely which we would all deplore - this could cause
an outcry difficult for politicians to overlook.
William: That may be the case.
We have got to satisfy ourselves that if a change in the MHA was made
that it would contribute to stopping that type of thing happening.
Personally, I don’t think the case for community treatment orders has
been made out. That is not to say
it never will be.
Jerry: A Department of Health draft
circular (‘The Care Programme Approach for People with Mental
Illness’, May 1990) comments that “community based services are only an
improvement when the patients who would otherwise have been hospital
in-patients get satisfactory health care, and where appropriate, social
care”.
Do you agree.
William: It seems a very sensible statement.
Jerry: But for some people with mental health problems, community care has been worse than hospital care.
William: I’m sure for some people it’s not an improvement at all. On the other hand, for a lot of people it is a considerable improvement. Sometimes there has been a danger, in our very understandable concern about the difficulties of implementing community care, of portraying the hospital as the most wonderful sort of place. Then it is difficult to understand that some alternative might be better. In my time at MIND I’ve seen hospital care delivered to individuals which has been truly appalling.
Jerry: On the other hand there have
been people who’ve drawn a scenario of hospital which is part of a
demonology of bad health care. People
do resent hospitals always being portrayed as run-down Victorian institutions.
William: I totally agree with that.
The further we can get away from demonology on either side the better. There are some excellent hospitals around and some very poor
ones.
Jerry:
Isn’t the answer to poor hospitals to improve hospital care rather than pull
the hospital down?
William: You’ve got to decide what you want hospitals to do. I am in favour of most mental health care being provided in the community. My experience of talking to people who use mental health services in the long term is that, on the whole, the preference is for care in the community. That is generalisation and anecdotal but it is my experience.
Community
care is, in many ways, much harder work than looking after people in hospital.
The absence of physical boundaries, in the sense that you have them in
hospital, the fact that people are not invariably where you expect them to be,
as they are usually in hospital, makes it much harder.
Jerry: Perhaps the simpler way is the better option.
William:
But on the whole people with mental health problems should live in the
same circumstances as everyone else does,
taking into account problems and giving assistance as required.
Jerry: I think most people feel
that mentally ill individuals should only be in a place of safety or an
asylum, when it is in the interests of that person or in the public interest.
William: I have no objection to that. I think there is a well established place for asylums and certainly at times in the life of a person with acute mental health problems there is a need to be in hospital.
Jerry: Short or long term?
William: For acute mental health problems hospital is the right place.
Jerry: There is the problem of closing the hospital without alternative provision. There is also the emerging difficulty of selling the hospital site. Thus you cannot obtain the capital from the sale or much less is received than anticipated. The financial consequences of that MIGHT cause some people to think that maybe this community care programme is so expensive and selling the hospital land so difficult that keeping the hospital land and modernising the asylum with smaller scale units is an attractive option.
William: That is clearly an option. In terms of land sales, at some future date land sales may produce more money. If you can’t get the money from land sales then you’ve got to get the money from somewhere else.
NSF News, August 1990
William Bingley interviewed
by Jerry Westall
WILLIAM BINGLEY was the Chief Executive of the Mental Health Act Commission for ten years. In 2000 he left the Commission and is now Professor of Law & Ethics in the Department of Primary & Community Nursing at the University of Central Lancashire. On 6 April 2000, he gave evidence, with Professor Generva Richardson, to the Health Select Committee, as part of its enquiry into NHS mental health services. The Report into these enquiries was published on 13 July 2000.
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NSF News, August 1990
Review of the first edition, published in June 1990, of the Code of Practice for the
1983 Mental Health Act.
by Harold Jones.
ISBN 011 3212887ix plus 123 pp £3.50
HMSO 1990
The Code of Practice which was published in June offers detailed guidance on how the Mental Health Act 1983 (the Act) should be implemented. ‘The Act does not impose a legal duty to follow the Code but failure to follow the Code could be referred to in evidence in legal proceedings’ (1.1). The Code is intended primarily to address the needs and rights of persons detained under the mental health legislation (about 7 per cent of admissions). However, the Executive Letter EL(90) P/85, published in the same volume as the Code, states that much of the Code applies equally to informal patients, and ‘practitioners should seek to ensure the Code is referred to as a good practice document for the care and management of all mentally disordered patients’.
It is possible here to indicate only some of the many features that are potentially of value to NSF members. The guidance is based on certain broad principles:-
‘People being assessed for possible admission under the Act or to whom the Act applies should:
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receive respect for and consideration of their individual qualities and
diverse backgrounds, social, cultural, ethnic and religious;
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have their needs taken fully into account though it is recognised that, within
available resources, it may not always be practicable to meet them;
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be delivered any necessary treatment or care in the least controlled and
segregated facilities practicable;
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be treated or cared for in such a way that promotes to the greatest
practicable degree, their self determination and personal responsibility
consistent with their needs and wishes;
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be discharged from any order under the Act to which they are subject
immediately it is no longer necessary.’ (1.3)
Relatives who have been confronted with the need to consider compulsory admission will appreciate the following:
‘The ASW (approved social
worker) must attempt to identify the patient’s nearest relative…, and
ensure that his statutory obligations (Section 11) to the nearest relative are
fulfilled. In addition, the ASW
should, where possible:
a.
ascertain the nearest relative’s views about the patient’s needs
and his (the relative’s) own needs in relation to the patient.
b.
inform the nearest relative of the reason for considering an
application for admission under
the Mental Health Act and the effects of making such an application.’ (2.13)
It is sound advice that the ASW is usually the right applicant, bearing in mind ‘the potential adverse affect that a nearest relative application might have on the relationship with the patient’ (2.30). Consideration is given not only to the nearest relative but also generally to carers, relatives and friends of the patient. The following are examples:
‘Where there is an unresolved
dispute about an application for admission, it is essential that the
professionals do not abandon the patient and family. Rather, they should explore and agree an alternative plan, if necessary
on a temporary basis, and ensure the family is kept informed.’ (2.29)
‘Professionals should also
recognise that though they may experience the disturbed behaviour as
intermittent, the fellow residents or carers, will experience it through 24
hours’. (18.2
The Executive Letter published with the the Code refers to the debate
on 29 January 1990 in the House of Lords when Lord Mottistone spoke on behalf
of the NSF. The Letter concedes
that the words ‘where necessary’ in
paragraphs 2.27 and 2.30 are ambiguous and ‘should
be interpreted to mean that where a nearest relative is unaware of his or her
rights under the Mental Health Act 1983, then either the approved social
worker or the doctor(s) involved in the patient’s assessment should
positively draw the nearest relative’s attention to the existence of these
rights.’ The
Letter also recalls that the Government gave undertakings to seek the advice
of the Mental Health Act Commission on the three specific criticisms raised
during the debate, and on the operation of the new Code. At the invitation of Roger Freeman, formerly Parliamentary
Under Secretary of State for Health, NSF has proposed some amendments to the
Code and in a letter to his successor, Stephen Dorrell, Judy Weleminsky*
wrote, ‘We still think that
clarification is required for Section 2.6 on the admission of a patient in the
interests of his own health and for Sections 18.23-28 on the need for
detention to be effective so long as that is necessary’.
William Bingley mentions in his conversation with Jerry Westall (see article above) that the Mental Health Act Commission would welcome comments on the Code. We can help by observing how the guidance given in the Code is followed and by offering our comments and suggestions.
Surprisingly, the index includes none of the references to relatives, families, carers and friends and only some of those to the nearest relative. A list of these references is available from NSF national office.
The Code of Practice would make a useful addition to any NSF group’s library.
NSF News, August 1990
Harold Jones
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NSF News, August 1990
Article
about Section 7 in the Mental Health Act 1983 by Rosemary
Moore
Although few guardianships exist under the terms of the Mental Health Act 1983, I believe that this can be an extremely powerful way to protect the interests of patients and their supportive relatives and should be used much more widely.
In the few guardianships which do exist, most “guardians” are the Social Service Departments of the Local Authority. However, the nearest relative of the patient has the right to apply for the patient to be under the guardianship of the local authority. The nearest relative also has the right to object and prevent a patient being under guardianship of the local authority.
My brother is now 41 and has been diagnosed as schizophrenic for the past twenty years. The problems our family has encountered in trying - and failing - to see that he is properly cared for will, I am sure, be very similar to the problems experienced by many of you reading this.
The difficulties arise from the relative’s lack of defined status. In my experience the reaction to a “carer” is very negative; it means that at best one is patronised and ignored more often than not.
The main point about guardianship for relatives is that it gives one a status in law as the patient’s advocate. It overcomes the problem of professionals refusing to involve a relative properly in the care of the patient and, of course, withholding information about a patient’s care. It is vital that a relative has this in order to help the patient.
For this reason I would like to encourage other families to consider the possibility of becoming the patient’s guardian.
In some cases I am sure that it would be appropriate for the Social Services to take the responsibility of guardianship. However, I feel this should only happen where the patient does not have a relative concerned with their welfare, or if the relatives themselves feel they would prefer the local authority to take the responsibility for seeing that the patient receives all the care to which they are entitled. In my own case, and that of most of the families I know, I feel it is entirely appropriate - and very necessary - that the relatives are given the guardianship. It is particularly important if the patient is being cared for in the relative’s home.
Many people are doubtful about guardianship and, until recently, I had reservations, ie -
· that guardianship in law was unnecessary because I was already acting as my relative’s guardian in practice;
· that it would place inappropriate responsibility on me and put more pressure on me to care for my relative at home;
· that it had no “teeth” and therefore served no useful purpose.
I now believe that guardianship is essential to ensure that a patient is properly cared for; it also gives the relative power to protect their own interests as well as the patient’s.
The following is an extract from the Mental Health Act 1983 which details the powers of the guardian:
(a)
the
power to require the patient to reside at a place specified by the authority
or person named as guardian;.
(b)
the power to require the patient
to attend at places and times so specified for the purpose of medical
treatment, occupation, education or training;
(c)
the
power to require access to the patient to be given, at any place where the
patient is residing, to any registered medical practitioner;
A supposed weakness of guardianship is that the guardian cannot force the patient to have medication. However, I feel that, on the contrary, this is actually its main strength, because the guardian can pass the responsibility for deciding the treatment over to the people who should be dealing with it - the professionals. Also, patients can be very resentful about the power they think relatives have over them, ie “you can put me in hospital if you want to”, and it would be extremely damaging to the family relationship if it appeared to the patient that their relative could dictate whether or not they had medication. As the patient’s guardian, the relative has the power to see that this is decided between the patient and the doctor. The guardian can demand both that the patient sees professionals and - much more importantly - can demand that the professionals see the patient.
My brother is typical, I am sure, of many patients: the problems with not taking medication have always stemmed from the lack of professional interest in helping him. When, as now, he has access to a doctor who will discuss his medication with him (and me) and the drugs are modified with care, my brother will co-operate and indeed be more cautious than the doctor in cutting back on medication.
As important as the power to demand treatment for the patient, is the power to see that the treatment is monitored. The Mental Health Act says: “It is an offence for anyone to ill-treat or wilfully neglect a patient subject to his guardianship or otherwise in his custody or care.” Therefore, as the patient’s guardian a relative can say that it not just their right but their duty under the law to make sure that the patient is not neglected and that the care s/he receives is good.
Having now extolled the virtues of guardianship I have to tell you that I am not yet my brother’s guardian under the Mental Health Act! For a guardianship to be legal, it has to be granted by the Social Services Authority. Although when I made the application they accepted me as a suitable person to be the guardian and the two medical recommendations required were in order, they refused to grant the guardianship on a legal point. I referred the matter to the Ombudsman who has decided that this decision was wrong (ie the guardianship should have been granted), and in due course the application will be accepted formally.
However, guardianship is a state of mind as much as anything else. I see myself as my brother’s supporter rather than his carer; that it is my role to look after my brother’s interests rather than looking after him in the absence of professional care. I want him to receive the professional care he needs and I expect that care to be of a good standard.
NSF News, August 1990
Rosemary Moore
(See also article in Mental Health Review Tribunal
Members’ News sheet, 1993)
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NHS AND COMMUNITY CARE ACT |
NSF News, August 1990
Article about 1990 Community Care Act
by NSF’s Parliamentary Officer, Dorothy Silberston,
Work on this, has dominated the whole Parliamentary session. I had problems in the Commons as none of the Conservative MPs on the Committee was a known NSF sympathiser, and only with their help could we hope to get amendments tabled with any chance of success. Contact with the Parliamentary Unit at the National Council for Voluntary Organisations got over this and enabled us also, for the first time, to work in partnership with Housing Associations in pressing for accommodation as an essential element in community care, and with other organisations in fighting for adjustment of GP budget to take account of the special needs of people with long term, time consuming illnesses, and those who have problems in being accepted and staying on GPs’ lists.
Apart from getting housing into the Act (local authorities planning community care must consult statutory and voluntary bodies providing it as well as health authorities), there were few changes in the Commons. Hundreds of amendments were either not discussed, or defeated by the Conservative majority and the Government guillotine. A “broad brush” approach was the aim, with the minimum of detailed requirements. The flesh is to go on the bones in the form of “guidance” in Department of Health Circulars, to be sent out in the autumn. It was Government undertakings, rather than changes to the Bill, which were secured, generally speaking.
In the Lords, with Lord Mottistone’s help, the whole situation was transformed. Not only did he move amendments suggested by the NSF, but he wanted comments on those moved by other peers which we might wish to support or oppose, and went with Lord Seebohm to see the Government spokesman about an amendment they moved jointly. Only one change was made to the text of the Bill as a result, but again Government undertakings were given, which Ministers can be held to in the future.
From the first, the Bill had a provision for a specific grant to improve local authority mental illness services:
“The Secretary of State may,
with the approval of the Treasury, make grants out of money provided by
Parliament towards any expenses of local authorities incurred in connection
with the exercise of their social services functions in relation to persons
suffering from mental illness.”
Our concern was that those with schizophrenia who were not acutely ill, but substantially handicapped as a result of schizophrenia, should be eligible for services provided with the grant. An amendment about this was withdrawn after Government assurances that they would be, Baroness Hooper, on behalf of the Government remarked that “All mentally ill people, at whatever stage of illness are covered”.
Lord Mottistone’s main effort was an attempt to ensure that local authorities were told when someone was to be discharged from hospital. Lord Seebohm moved a similar amendment at Committee stage, and the two peers got together between May and June, as did representatives of the Association of Directors of Social Services with me, Graham Pitt advising on the legal side, to produce an amendment acceptable to both, which would stand a better chance.
Lord Mottistone: “The amendment
has three vitally important aims. It
seeks, first, to ensure that local authorities are given advance warning of
patients who are thought to be ready for discharge from hospital and who in
their consultant’s opinion will need community care services. Secondly, it enabled the local authorities to decide (a) which of these
patients it can assess before discharge, and (b) what services they need.
Thirdly, it makes a named individual responsible for overseeing any
community care services that are to be provided…Contrary to what is still
generally believed, the overwhelming majority of schizophrenics are not and
never have been long-stay hospital patients…There is no doubt that
after-care for schizophrenia is crucial. We know that failure to provide it has led to the shameful homelessness
of some, to the inappropriate imprisonment of others and to the colossal
strain on many family carers..”
The amendment was backed by several peers and had wide support. It was, nevertheless rejected by the Government in favour of “guidance” backed by a statement about everything being done to improve matters.
The amendment was taken to a division and lost, 37 voting for and 42 against.
Whatever one thinks about ring fencing of money for community care services in general at least the Secretary of State seems to have got our message as regards mentally ill people. As Kenneth Clarke remarked, “Some local authorities are less inclined to give the correct priority to mentally ill people…some hardly bother with it at all”.
With the Bill now an Act we must try to influence the famous “guidance” and the plans for community care services. An amendment NSF backed and the Government accepted means that NSF Groups should be consulted about these plans by local authorities.
NSF
News, August 1990
Dorothy Silberston
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NSF News, August 1990
Letter from Dorothy Silberston
I have a problem when Professor Leff speaks of schizophrenic patients who get treatment and then ‘recover’ (May issue of NSF News). He also quotes a Scottish study which found that in a year only 20 per cent of those with schizophrenia relapsed, and contrasts this with what he sees in hospital - “all the failures”.
Many members of NSF will not be able to swallow this, except in relative terms. Surely ‘recovery’, meaning a return to the capacities a person had before the illness, is rare. If you cannot work and take your place in society as a wage earner, even part-time, from the age of c20 onwards, is ‘recovery’ the word to use?
Life for thousands of schizophrenics who have been discharged and are not relapsing sufficiently to go into hospital is not linked with any kind of rehabilitation facility. What is also unproven is Professor Leff’s suggestion that the vast majority of those moved from an acute ward to such a facility, if it existed, can be enabled to go through the stages of ‘readjustment to life in the community’. What does he mean? I think he grossly underestimates the tragic impact of schizophrenia on many people’s capacity to cope with the chores and practical problems of ordinary life between relapses, let alone with getting and keeping a job or making and sustaining human contacts and relationships.
NSF
News, August 1990
Dorothy Silberston
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Mental Health Review Tribunal
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